Abstract

The Supreme Court considered standing in two high-profile cases during the October 2006 term: Hein v. Freedom from Religion Foundation and Massachusetts v. EPA. Both were 5-4 decisions in which the Court decided along traditional, ideological lines, and both decisions may provide an indication of the future direction of the Supreme Court.

In Hein, a five-Justice majority denied taxpayer standing to challenge the Bush Administration's so-called "faith-based initiatives" as a violation of the First Amendment's Establishment Clause. In Massachusetts, the Court broke new ground as it took several steps in a decidedly "liberal" direction. The five Justice majority's conclusion that Massachusetts had standing to challenge the Environmental Protection Agency's refusal to regulate greenhouse-gas emissions from new motor vehicles is potentially quite consequential.

Both Hein and Massachusetts are potentially significant standing opinions--the latter for what it did, and the former for what it did not do. Both decisions involved generalized grievances about federal government policies that affect citizens as a whole, but point in opposite directions.

The rather modest aim of this Article is to untangle what the Supreme Court did, or did not do, with regard to standing last term. This analysis may not produce any profound conclusions about the future course of the Roberts Court. It can, however, illuminate how the current Court approaches the question of justiciability and, as a consequence, the Court's approach to the separation of powers and its conception of its own role in policing executive conduct in contested policy areas.

This abstract has been adapted from the author's introduction.

Document Type

Article

Publication Date

2008

Publication Information

20 Regent University Law Review 175-199 (2008)

Comments

Written for the symposium Justiciability After Hein and Massachusetts: Where is the Court Standing (2007) sponsored by Regent University Law Review.

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